How to Take Maternity or Paternity Leave

Know the federal and state laws about parental leave, and find out what your company offers, before your baby is born.

San Francisco has passed a law that will provide all parents working in the city six weeks of leave at full pay to care for a newborn or adopted child.

The law, which will be phased in gradually and take full effect in 2018, is the most generous family leave policy the United States has seen so far. (It’s also called maternity leave for mom and paternity leave for dad).

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San Francisco’s law is part of a growing movement toward establishing paid maternity leave in America. Some large companies like Google and Netflix have recently instituted paid maternity and paternity leaves of up to a year, while in January 2015, President Obama gave federal employees six weeks of paid leave.

But right now, many new parents’ options are limited. The only federally mandated leave available, enacted in 1993 as part of the Family and Medical Leave Act, offers 12 weeks’ time off to mothers, fathers, and same-sex couples giving birth or adopting a child — but that time is unpaid. (There are significant exemptions: for example, those who take it must have been working at their employer for more than a year, and their company must have more than 50 employees.) Meanwhile, a 2014 report from the White House says just 11 percent of employers have formal paid maternity and paternity leave policies.

The benefits of maternity or paternity leave for families and children are substantial. One study found 10 weeks of paid maternal leave reduced infant mortality by 10 percent. Paid leave of at least 12 weeks has also been found to increase well baby and vaccination rates (unpaid leave had no effect). Mothers’ health, too, sees benefits — paid leaves of at least eight weeks ward off depression and improve new mothers’ overall health, and they can even reduce depression much later in life. Fathers shouldn’t be left out: a Department of Labor report cites a number of studies showing men who take longer paternity leaves are more likely to be involved in caring for their child and have higher satisfaction rates with parenting, while their children see improved health and cognitive development.

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There are many good reasons to plan ahead for a birth, and budget as best you can for time out of work. But what’s the best way to take leave — and can you afford it? Right now, the United States has a patchwork of laws that may or may not apply to you, says Penny Venetis, executive vice president and legal director of Legal Momentum, an organization that advocates for breastfeeding and parental leave laws.

The federal leave law covers only about a fifth of new mothers, according to the White House report, but legislation at the state level is often more generous. About 25 states have some form of parental leave policy in place, Venetis points out. Some of those states — about 15 — also expand on the federal law by including companies with more than 10 employees. For the best parental leave laws, look to California, New Jersey, and Rhode Island, which are the only states that mandate some form of paid leave. Indeed, San Francisco’s law only expanded on California’s already significant policy, which already provides six weeks of leave at 55 percent pay. (Legal Momentum has a helpful map of state laws here.)

If your employer offers paid leave, consider yourself lucky, and be sure to follow state, federal, and company guidelines in preparing for birth and notifying your employer of when you’ll be out. If you’re at a small employer — current laws regarding leave won’t apply to a company with less than 10 employees — consider consulting a lawyer to craft an agreement, then asking your employer to sign it.

The ultimate goal: “to make sure that while you’re with your child, your job is still there and it’s protected,” says Venetis. While many people would like to believe their employer has their best interests at heart, the reality can be less kind, she says. “We get calls at Legal Momentum all the time by people who negotiated privately on their own, and they get back and their job’s not there.”

“At the end of the day, if the law doesn’t require it, then it really is let’s make a deal. And sometimes employers renege on those deals.”

What if the worst happens, and your job isn’t there on your return? If your employer has a written policy regarding leave, Venetis says, you could argue they’re not complying with it. (You may need to engage a lawyer.)

For parents who can plan ahead, she suggests evaluating potential employers based on the parental leave they offer. But don’t stop at the written policy — ask current employees whether they felt supported, both when they took leave and when they returned to work.

Ultimately, preparation is key. Younger employees might consider settling in a state that mandates family leave, Venetis says. “I know it’s hard for a 22-year-old or 23-year-old to think about these things, but they should. At least, they should know that it can have significant financial ramifications on them if they move to a state that has bad laws.”

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